Lord Triesman: My Lords, the Prime Minister made it clear some time ago. My noble and learned friend the Attorney-General has made it clear in the House and elsewhere. I think that the United Kingdom Government's view has been well known for a long time. I repeat—I ask noble Lords to understand—that there is a desire in general to try to make sure that some extremely dangerous peopleto all of us, including those in the United States, are processed in a proper and legal way but that they are also subjected to the proper rigours of law for the acts that they have committed.

Baroness Knight of Collingtree: My Lords, did not the Minister in another place, Mr Tony McNulty, very recently confirm that no legal offence of child trafficking existed and that therefore immigration authorities, social services and the police do not take action against it specifically? Is there not now clear evidence that hundreds of children are being trafficked into Britain and used in private houses, cannabis factories and sweatshops? Will the Minister now go further than her very sympathetic answers to this House on 28 June and persuade the Government to legislate against it?

Read a third time, and passed

Moved accordingly, and, on Question, Motion agreed to.
	[The page and line references are to HL Bill 67 as first printed for the Lords.]
	Clause 7, page 5, line 13, leave out "prescribed"
	The Commons disagree to this amendment for the following reason—
	 Because it would not be appropriate to remove the power of the Secretary of State to prescribe descriptions of expenditure
	Page 5, line 19, leave out subsection (3)
	The Commons disagree to this amendment for the following reason—
	 Because it would not be appropriate to remove the power of the Secretary of State to prescribe descriptions of expenditure
	Clause 14, page 9, line 13, leave out "comply with" and insert "take account of"
	The Commons disagree to this Amendment, but propose Amendment 7A in lieu—
	 Page 9, line 17, leave out paragraphs (a) to (d) and insert ", specify matters to be taken into account in determining the persons to whom, the purposes for which and the conditions subject to which the Fund distributes money."

Viscount Astor: My Lords, I am grateful to the Minister for his explanation. He listened to the concerns that we raised throughout the passage ofthe Bill in this House, and those concerns were largely addressed when the Bill went back to another place. That was extremely important, because we were concerned that the Big Lottery Fund, which, after all, is going to hand out 50 per cent of all the proceeds for distribution, was not going to operate on the same basis as the other distributing bodies. The Secretary of State's power was greater than it was in relation to the other bodies and we felt that it should be the same. The Minister has made those changes.
	More important, he has given us an assurance in writing that there is no possibility that the Secretary of State will be able to issue a direction under subsection (1) of new Section 36E to specify where lottery money is to be given. That is important because concerns have been expressed that, in the past, the principles of additionality have been broken by the distributing bodies. We had some clear examples of that as we went through the Bill, and the Minister's explanation has helped to assure us that it will not happen again. That is given greater strength by the amendments that the Minister acceptedat Third Reading, whereby under the Bill the distributing bodies will have to produce a report on additionality.
	We welcome the Government's amendments and we thank the Government in this instance for being a listening Government. It does not happen very often but we must be very grateful when it does.

Baroness Henig: Amendment No. 40 is a probing amendment. Clause 29 provides Ministers with wide-ranging powers to confer additional functions of inspection on the chief inspector by order. I will be interested to hear from my noble friend what additional functions are envisaged might be conferred in that way. Of more concern are the provisions of Clause 29(3) which would enable Ministers to amend any piece of primary or subordinate legislation as part of such an order. That seems to be a very wide-ranging prospect indeed. It would be helpful to know in what kind of instances the power to amend legislation by order might be used.
	Amendments Nos. 141, 142 and 145 simply seek to ensure that the bodies subject to inspection are consulted by Ministers. That would apply if an order were to be made or to the directions given to the chief inspector by Ministers. The key point about inspection is that it should drive improvements in performance; it should not be about catching people out or creating unnecessary burdens. It is important that those subject to inspection—police forces, authorities and others—have a chance to work with Ministers and others to ensure that we have an inspection regime that is, to coin a common phrase, fit for purpose. In that constructive spirit, I beg to move.

Lord Bassam of Brighton: I fully understand that concern has previously been expressed about the apparent breadth of the consequential amending power in Clause 29(3)—in particular that it might be used to alter the nature of the chief inspector's inspection functions. I want to make clear that that has never been our intention. The clause relates only to any additional non-inspection functions that Ministers might wish to confer on the chief inspector in future. In another place, we amended the wording of subsection (1) to make that clear.
	In the context of such hypothetical non-inspection functions, we consider it sensible to allow maximum flexibility to accommodate adoption by the inspectorate of new functions in the future. Such functions might relate to activities referred to in other legislation. For example, Schedule 1l(11) amends the Police Act 1996 to enable the new inspectorate to continue to contribute to the membership of police appeals tribunals. Consequential amendments to the present provision might also be needed—for example, to make further arrangements under Schedule 9 in respect of staffing or expenditure consequent on additional functions.
	The power to make such consequential amendments, in so far as it is used to amend primary legislation, will be subject to the affirmative procedure, as stated in Clause 47(5)(b), so parliamentary scrutiny of its use in that respect is guaranteed. As the power relates only to non-inspection functions, we do not consider it appropriate to add a consultation requirement relating to bodies which are to be inspected.
	Amendment No. 142 seeks to add the body or bodies which are to be inspected by the chief inspector to the list of bodies who must be consulted before Ministers direct the chief inspector to carry out an inspection. Such a direction may be in respect of any specific part or aspect of the courts, criminal justice or immigration enforcement systems, or any specific matter falling within the scope of the chief inspector's duties.
	That power is intended for use in particular in situations where significant under-performance by a part of one of the inspected systems is causing ministerial and public disquiet or concern, or to commission an investigation by the chief inspector of a serious incident relating to the areas of work inspected—such as that recently carried out by the Chief Inspector of Probation in the case of Rice. We do not consider that it would be appropriate for Ministers to be required formally to consult the body which was to be subject to such an inspection or investigation. In practice, Ministers are likely to take the advice of senior officials, including the chief of the body concerned, when deciding what action to take. To go further than that would risk damaging the flexibility and independence which are crucial in such interventions.
	Amendment No. 145 adds the body or bodies which are to be inspected by the chief inspector to the list of bodies who must be consulted by the chief inspector on his proposed inspection programme and inspection framework.
	We indeed intend that the chief inspector shall consult the inspected bodies on the inspection programme. Accordingly—I am sure that this will bring some cheer—I am happy to accept Amendment No. 145 in principle. We would envisage a provision whereby the chief inspector was under a duty to consult on the inspection programme with the bodies that he proposes to include in that programme and we will bring forward such an amendment at Report.
	I trust that, having heard that, the noble Baroness will feel able to withdraw her amendment and that Members of the Committee will work with us to achieve what we jointly want in the spirit of Amendment No. 145.

Baroness Henig: I very much hope that the Government will accept Amendment No. 143, although I hope I am not pushing my luck too far. The amendment relates to the inspection of police authorities, because the Bill provides for police authorities to be subject to inspection by the new inspectorate. This is something of a departure, because currently police authorities can be inspected only in respect of their best-value duties. I strongly welcome the principle of this, as I know do my colleagues in the Association of Police Authorities, because it is right that police authorities should, like other public bodies, be subject to open and transparent inspection.
	Clearly, the new single inspectorate will be a different creature from the existing bodies, but equally, as now, I am sure the inspectors willinclude among their ranks existing practitioners, ex-practitioners and professionals. Her Majesty's Inspectorate of Constabulary is very much made of former and serving police officers. Although there have been some recent diversification, involving a number of lay inspectors, it still mostly comprises ex-police officers. Although I have the greatest respect for Her Majesty's Inspectorate of Constabulary—indeed, I always found it to be an invaluable source of advice and expertise when I was a public authority chairman—I am sure the Committee will agree that it would be inappropriate for the public authority, whose job it is to oversee and scrutinise police forces, to be inspected by a body made up mostly of persons who were, or are, members of those forces.
	I had the interesting experience last year of being involved in a prototype inspection of a public authority. I know that HMIC colleagues, who had been rather dubious about including public-authority input, quickly realised during that exercise that such involvement was essential. My amendment therefore aims simply to ensure that, in any inspection of a public authority, the inspection team should include individuals with knowledge, expertise and experience of public authority issues. This is a sensible and essential step, and I commend the amendment to the Committee. I beg to move.

The Earl of Northesk: With the leave of the Committee and at the invitation of the noble Lord, Lord Bassam, I shall speak to my amendments in this group. At the outset, I should offer my guarded congratulations and thanks to the Government on bringing forward these changes to the CMA. As the Minister is only too aware, I and others, not least the Internet All-Party Group, have been calling for some time for the legislation to be updated to make it clear that DoS attacks—denial of service attacks—are unlawful. As they stand, Clauses 39 and 40 go some way towards achieving that in a rather more coherent way than my somewhat ham-fisted Private Member's Bill of four years ago. Nevertheless, as the Minister has explained, gaps remain in the provision. In particular, the current drafting does not deal with the problems caused by botnets, zombie infections and the like.
	I need not dwell too much on the nature of the problem because the Minister has explained that well enough, but it might be helpful to put this into some sort of context. For example, in 2005 the Federal Trade Commission estimated that something of the order of 150,000 computers were hijacked daily as a means of launching a criminally motivated DoS, spamming and fishing attacks. In similar vein, Gartner, the analysts firm, estimated recently that up to 70 per cent of all spam is generated by zombie machines. In monetary terms, it is estimated that these categories of DoS attack cost internet service providers $500 million every year in excess trafficand customer churn alone. Clearly, therefore, they constitute a serious threat for which adequate provision should be made in law.
	Having tabled my amendments ahead of the Government's, I can only express my gratitude that the Government have seen fit to endorse my proposition. I am indifferent as to which version finds favour with the Committee; if mine are defective, I am quite content to accept that. Be that as it may, I confess to a certain amount of embarrassment. Although drafted to deal with a specific and palpable problem, I had intended them merely to be probing in character, because I have residual and serious concerns about how effective the provisions will be in practice.
	Access to IT systems can be denied for awhole host of reasons. Notwithstanding the scale of maliciously motivated attacks to which I have already referred, the bulk of such denials are attributable to wholly natural or, dare I say it, innocent causes. At the most basic level, connections to the internet can be rendered unreliable or inoperable by pure weight of traffic, as occurred with the 1901 census site when it went online. By analogy, congestion on our roadsis a considerable irritant, but it is not—so far asI am aware—criminal. By the same token, pooror inadequate server or website architecture is commonplace and gives rise to serious access problems. To state the obvious, internet and website performance is dependent on appropriate and adequate levels of quality of service, the apparent absence of which seems to be a persistent feature of government IT projects.
	In passing, I cannot resist mentioning today's media reports of significant problems with the Passport Office's online systems. Some might even be tempted to argue that this is a particular feature of the PDVN, on which we all rely. Moreover, it is inevitable that these systemic weaknesses are exploited, deliberately or not, by the perpetrators of DoS attacks. The difficulty is that the Bill makes no distinction between those occasions when IT systems slow down and crash as a result of criminal or malicious interference and when they fail for entirely natural reasons. Indeed, that is compounded by the fact that proper analysis of any particular system crash is a profoundly technical matter, more often than not beyond the technical expertise of law enforcement and the judicial process.
	An even greyer area is the status of cyber protest, or online lobbying, numerous examples of which exist, such as the pro-Zapitista group, Electronic Disturbance Theatre, or the French group, Federation of Random Action. At its most fundamental, the internet is a means of communication—a hugely powerful one, but a means of communication none the less. As such, it has enormous potential to empower, enrich and liberate the individualcitizen. To that extent, it is crucially important that internet law be drafted, so far as is possible, not to constrain freedom of expression and of association unnecessarily or disproportionately. By its very nature, cyber protest, although of course not criminally motivated, will often mimic the effects of a DoS attack. Occurrences of it will therefore be potentially prosecutable under the terms of the Bill, particularly if one considers the full implications of the drafting of Clause 40(5)(b).
	By way of another example, blogging, particularly in the political sphere, is becoming increasingly popular. We should welcome that, especially in terms of public engagement with politics. But if a particularly successful blog generated so much traffic that it crashed the server on which it was hosted—an equivalent of a DoS attack—would its author and those accessing the site have committed an offence under these provisions? As I interpret it, the drafting is unclear on the point. If the answer is yes, that cannot be right. Nor do I believe, given the technical complexities involved in this whole area and thewide breadth of the existing provision, that it is appropriate to fall back on reliance on the interpretation of the courts. As legislators, we should be capable of stating our intent with much greater clarity than this.
	I have a number of other, wider concerns which, conscious of time, I will merely list. First, there are huge problems associated with definitions of "legitimate authorisation" insofar as they relate to the online world. Secondly, there are palpable concerns about how enforceable the provisions will be. After all, prosecutions under the CMA are rarer than those for murder. Thirdly, huge question marks hang over the capacity of law enforcement and the judicial process to attend to the issue in terms of both resources and training,. It is worth noting that there is no mention of the word "computer" in SOCA's recently published annual plan, notwithstanding that the NHTCU has been subsumed into it. The Bill does not attend to any of those matters.
	I apologise to the Committee for having spoken at such length. As I say, I welcome the Government's attempt to bring DoS attacks within the scope of the CMA. It is a small step in the right direction. That said, I am unconvinced that the insertion of these odd few confused clauses at the tail end of a portmanteau Bill demonstrates either adequate understanding of the complexities of the issues or firm resolve to attend to the whole corpus of internet crime. Rather, they are a desultory attempt to use no more than a sticking plaster to mend a broken leg. What is needed above all else is a wholesale rewrite of the CMA, not only to take account of how far technology has moved on since it was enacted, but also to weave in the intricacies of associated civil liberty issues. To be blunt, I fear that ultimately these clauses will create more problems than they solve.

The Earl of Erroll: My Lords, I have had a certain amount of e-mails and discussions about these clauses. In general I think they are a good idea, so they should go through. There is very little difference between the Government's amendments and those of the noble Earl, Lord Northesk. The only thing I would add is that it has always worried me how you define the difference between a denial-of-service attack where it comes from one point or a set of netbots, and someone demanding that everyone lobby their MP on a particular issue so suddenly that 100,000 e-mails are sent from different single points to one central server. Actually, maybe the latter case should be made illegal, although I cannot think how it could. I apologise for hesitating; I had not thought this out very hard. There are problems around it that probably need to be addressed, as the noble Earl was saying. With the general proviso that we need to think further about the issue, I welcome these amendments.

Lord Bassam of Brighton: My Lords, I have heard what both noble Earls have had to say on this subject. The noble Earl, Lord Northesk, is well regarded in your Lordships' House for his knowledge and interest in, and dedicated consideration of, these issues. I have great respect for him for the work he does.
	I shall respond to a couple of points that the noble Earl raised. Just to clarify this point: the Bill distinguishes systems interference due to criminal action from that due to accidental action by whether the access modification is unauthorised and whether or not the person has the necessary mens rea. It will ultimately be for the courts on the facts to decide whether an individual protest crosses over into unauthorised and hence criminal activity.
	The noble Earl raised the prospect of a rewrite of the Computer Misuse Act 1990. We have consulted the industry, including the APIG, which the noble Earl mentioned, and others on this issue over a period of two years. We concluded that the consultation did not highlight the need for a complete rewrite of the Act, but these changes reflect the issues that were raised as fruit of that consultation. I know that legislation in this field is an art of perfection for the noble Earl but we seek, as ever, to keep the industry well informed and well briefed on our thinking. We consult regularly, take on board the results of those consultations and try to reflect them where relevant in any necessary changes to legislation. I am very grateful for the noble Earl's work on this. I accept that he will never be entirely happy and satisfied with what we are attempting to do, but I hope that he will feel reasonably content and that he will not press his amendment.

Lord Bassam of Brighton: My understanding is that our amendments cover the same ground, and as I advised the Committee we had a suspicion that the amendment proposed by the noble Earl, Lord Northesk, was technically deficient. We would prefer our amendment to his, and I thought that the noble Earl was going to withdraw his.

The Earl of Northesk: This subsection was introduced as a government amendment in Committee in another place. Moreover, although some concerns were raised at that time, I acknowledge that there was consensus across the political divide that it should be inserted. In that sense, I draw no comfort whatever from the possibility of being a minority in objecting vehemently to the provision. It is profoundly flawed and coulddo untold damage to the IT community in the UK and conceivably even that beyond our shores. I shallendeavour to explain why.
	Before so doing, as with the previous amendments on DoS attacks, I willingly, although again guardedly, endorse and support the Government's intention with the clause as a whole. We all know that, whatever its form, online hacking of IT systems with criminal or malicious intent is a modern scourge. Manifestly, therefore, due provision should be made to proscribe making, adapting, supplying or offering to supply so-called "hacker tools". I therefore find paragraph (a) eminently sensible and desirable. That said, I am fiercely of the opinion that the test that someone is guilty of an offence under the clause if he merely believes,
	"that it is likely to be...used...in the commission of an offence"
	is unnecessarily and dangerously broad, the more so because it is not in any way constrained by the expressions of intent contained in paragraph (a).
	As the Committee will be aware, the use and effectiveness of online activity is highly dependent on the work of anti-virus and IT security companies. Of necessity, they employ a variety of so-called "hacking tools", such as Nmap, which is used to probe for insecure machines online to see whether they respond, or the scripting language Perl, simply to test IT systems for vulnerabilities that could be exploited by those with criminal or malicious intent. In so doing, they can address discovered weaknesses, hopefully, before hackers can take advantage of them. Indeed, the patches and updates issued by the likes of Microsoft—of which I am sure Members of the Committee are only too aware—are a culmination of this process.
	Here, it is not a case of whether system administrators believe that such tools are "likely" to be used in the commission of an offence; they know full well that they will be—and, indeed, already are. Accordingly, in any interpretation of the paragraph, they lay themselves open to possible prosecution simply by doing their job. As an IT acquaintance has pointed out to me, this is akin to legislating to make use of a crowbar illegal on the basis that an individual would believe that it was "likely" to be used in the commission of burglaries.
	I do not doubt that that is not the Government's intent; nevertheless, it is the implication of the drafting. I know of a number of IT professionals, some of whom are among the best in the country at what they do, who are sufficiently worried by the implications of the clause that they are actively considering abandoning their work in IT security or moving overseas. That would be disastrous, not only for our reputation for IT but economically.
	Consider, too, forensic hacking. Of necessity, law enforcement agencies use hacking tools to investigate crime; for example, to gain access to encrypted data. Again, it is not a case of "belief" that such tools could be used by a hacker, it is absolute certainty. Do we, therefore, conclude that an IT security company supplying hacking software to the police should be deemed to be committing an offence? Or, perhaps, the Government imagine that an individual constable hacking into encrypted data on a criminal's computer could fall foul of paragraph (b). Patently, such situations would be absurd.
	I wonder, too, whether the Government have thought through this matter in the context of higher education. As the Committee will be aware, the syllabuses of many undergraduate computing degrees include hacking. In fact, in response to demand from the IT sector, the University of Abertay in Dundee has recently announced its intention to run, from the start of the next academic year in October, a BSc (Hons) undergraduate course in ethical hacking and countermeasures. But what would be the status of such educational opportunities if paragraph (b) were enacted? On the face of it they would be illegal, because students and professors would know, not merely believe, that the subject matter of their courses is "likely" to be used in the commission of an offence. Again, this would be perverse.
	I am of course aware of the Home Office's view that the key to the provision is how the courts might interpret "likely". Indeed, it has circulated a letterto interested parties which makes this observation. It states that it
	"boils down to the court deciding whether it is more likely than not each individual instance of the article will be used to commit an offence, i.e. the offence is only committed if it will be used criminally more than legally".
	I apologise, but I deem that to be just gobbledygook. What happens where a tool is determined as being used legally and criminally in equal measure? How, in fact, would a court measure accurately such percentages of usage? Quite apart from that, and as with my criticisms in the previous grouping, is it not incumbent upon us as legislators, and indeed the Government, to imbue the law with as much clarity as possible?
	I could say much more, but I will not weary the Committee any further. I merely observe in conclusion that, in contrast to their efforts on DoS attacks, with paragraph (b) the Government are attempting major surgery where a sticking plaster will do. They are using a sledgehammer to crack a nut, the more so because paragraph (a) of itself bears down adequately, if not entirely, upon the activity that the Government wish to and should proscribe. In so far as that suggests incoherence in their approach to legislating on IT, I repeat my conviction that a wholesale re-write of the CMA is needed. In the mean time, I beg to move.

The Earl of Erroll: I shall also speak to Amendment No. 178ZA in this group. To be honest, Amendment No. 178, deleting the paragraph altogether, may be the best course of action, because the provision causes serious problems. I have had long conversations about this with several people from companies that will be directly affected by it. I thought that the Home Office might not be willing to remove the paragraph, so I tabled my slightly less extreme amendment; nevertheless, it may have its own problems, and it may be wiser to delete the paragraph altogether. This small but important amendment will have a serious impact on quite a lot of companies that currently write software that is perfectly legal and is extremely useful because it allows computers to be managed remotely. To give you a feel of the technology, the Parliamentary ICT helpdesk uses such software. If you have a problem, you can allow one of the helpdesk people to take control of your computer or to watch what you are doing on it and give you helpful advice. That would be a typical application where someone is remotely accessing your computer using the same tools as hackers would use.
	People developing websites will have software that can download and install itself to monitor the mouse's movements around the screen to see how people use the websites, where they hover and what they click on. These things, which sit in the background, are used by academics and developers to make websites more usable. We all know of websites—possibly even the parliamentary website—which could do with a little research in this direction. Such tools will almost certainly be made illegal by the proposal because they are exactly the sort of tools that hackers can use. Even if such tools were not principally designed for a hacker in the first place, hackers could easily modify bits of them, or use them, and it is extremely likely that they will do so; it is highly unlikely that they would not do so.
	It is very likely that hackers will use these things. It is highly improbable that they will not. Unless my definition of "likely" is very different from that of the lawyers at the Home Office, I would prefer the dictionary definitions that I find to the ones that they may be trying to use.
	The real trouble is how the courts will interpretthe word "likely". In our courts, some very clever barristers will use very clever verbal gymnastics to twist the meaning of the word "likely" to suit their case. The case may be brought not against a large company that can afford very expensive barristers to defend it but against a small, one-man band, who may have written some software. For some reason someone who may be trying to gain commercial advantage reports him, or has a contact that can do something, and he may be unable to defend himself against a clever barrister in court.
	I do not know whether the word "likely" implies that more people will use such tools for legal purposes than for illegal purposes such as hacking. How dothe courts establish that? As a result, after some discussion with people, I suggest the word "primarily", which would be better. I am open to other ideas, such as that of our assiduous and articulate assistant to the Convenor of the Cross Benches, Julian Dee, who suggests "largely intended for". A journalist on the train with whom I was discussing it this morning suggested "principally". All these words have much to recommend them instead of the word "likely".
	The important thing is that they should convey the intention of Parliament better than the word "likely" in the mind of the lawyers. I support this approach because of the possibility that this might persuade the lawyers in the Minister's department to change their minds, but I do not know whether this is likely or unlikely.
	It has been suggested to me in discussions with the people behind the word "likely"—the Home Office—that the courts can use Pepper v Hart to look at the Minister's response to these amendments to find out the intention behind Parliament's inclusion of this word. The trouble is that the courts have to decide that it is ambiguous and I am not sure that it is at all ambiguous. I believe that it is highly likely that any of these tools will be used by hackers unambiguously.
	Another approach would be to use a very ambiguous word. I will leave it to noble Lords' imagination how you might make this phrase so ambiguous that the courts had to read the Minister's statements. That would be an alternative, but is that likely to happen? Anyway, it is a bad way to make law.
	I turn to a matter that I feel strongly about. In Roman law, I believe, one makes laws slightly general and the courts and the state decide how the law is to be interpreted and fill in the blanks later. But under common law—we are a common law country—basically you are allowed to do anything that is not expressly forbidden. Therefore, we define much more closely what is forbidden because it is important to make clear what companies are and are not permitted to do and not leave it to the courts to interpret later.
	I have also spoken to someone who has close ties with the Commission and they do not like this at all either. Should we pass the measure in this form, there may be moves from Europe later in the yearto get it changed. International companies are sufficiently worried about this for lobbying to take place. With that, I look forward to hearing the Minister's reply.

Baroness Harris of Richmond: We agree with this amendment. As I understand it, under paragraph (b) a software developer will need only to intend his software to be used or believe it likely to be used as a hacking tool. I very much welcomed the fact that the noble Earl, Lord Erroll, explained his concerns about the word "likely"—a point with which we also agree.
	Those in software development are fully aware of the capabilities of software. Many tools traditionally used by hackers are also used by security consultants when checking a system to make it safe from those doing the hacking. The noble Earl, Lord Northesk, put across far more effectively and succinctly than I ever could the import of his amendment.

The Earl of Northesk: I thank the Minister for that reply and I thank the noble Earl, Lord Erroll, and the noble Baroness, Lady Harris, for their contributions and their support for the amendments. Regrettably, I am none the wiser. The Minister has not clarified the issue for me one iota. My understanding is that at the heart of this lies the legal definition of "likely". It is a sad fact that vast swathes of the IT sector remain, to this day, confused about how the word "likely" will be interpreted by the courts. They simply will not take the risk of falling foul of this provision. I do not mind whether the noble Lord wishes to dismiss that, but that happens to be true.
	I have very serious difficulties about how the courts will interpret the Government's intent vis-à-vis "likely". How will the courts measure it, and against which yardstick will they measure it? There is absolutely nothing in the Bill to suggest that they can so do. I will read what the Minister has said extremely carefully, but, on first hearing, it does not clarify matters at all. With certainty, I shall return to this matter on Report. In the mean time, I beg leave to withdraw the amendment.

Baroness Anelay of St Johns: After that comprehensive reply, it would be churlish to do other than say that I will make sure that the Law Society of Scotland has a good look at this. I agree withthe noble Lord that, with regard to the third interpretation of the potential consequences, it would be wrong to prevent information going to the commissioner. I shall seek the advice of the Law Society of Scotland and I beg leave to withdraw the amendment.

Lord Kingsland: In moving AmendmentNo. 186, I shall speak to the other amendments in the group. I shall speak also to Amendments Nos. 187 to 190 because, although they deal with a distinct matter, in a sense the two groups of amendments run together.
	The issues raised by the amendments deal with two matters. The first is treaty ratification; the second is reciprocity—that is, the fairness of the test contained within the treaty itself. I shall begin by dealing with ratification, although necessarily, as I seek to develop my argument, I shall make some reference to reciprocity.
	Our starting point is the existing international law between ourselves and the United States—the extradition treaty of 1972. That treaty still defines the international law obligations between the two countries. It is, broadly speaking, a treaty which contains tests which are balanced. If the United States wishes to extradite someone from the United Kingdom, it has to meet what is known as a prima facie case to succeed. Equally, when we apply to extradite somebody from the United States, we have to meet the test of probable cause. There is much debate in international law about the extent to which these two categories are balanced; but, broadly speaking, I think it is accepted that they are.
	On 31 March 2003, Mr David Blunkett andMr John Ashcroft, respectively at that time, the Home Secretary of the United Kingdom and the Attorney General of the United States, signed a new extradition treaty. I say in passing that no prior notice was given to Parliament of the terms of this treaty before it was signed. Indeed, as far as I am able to determine, no one, outside Government, appears to have got wind of what was going on.
	The whole question of parliamentary oversight of treaty negotiations was raised tantalisingly by the noble Lord, Lord Lester of Herne Hill, in his debate on prerogative powers earlier in the year. Although I shall not develop the arguments now, I believe that the manner in which that treaty was concluded deserves the closest attention of your Lordships' House.
	From our point of view, the most important thing about this treaty is that it changed the reciprocity test. Although we have to continue to show probable cause to the United States Government when seeking somebody's extradition from the United States, the prima facie case no longer applies. That point was very fairly dealt with by the noble Baroness, Lady Scotland, during the debate on the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. She said that,
	"when we make extradition requests to the United States we shall need to submit sufficient evidence to establish 'probable cause'. That is a lower test than prima facie but a higher threshold than we ask of the United States, and I make no secret of that. The fact is that under the terms of its constitution the United States of America cannot set its evidential standard any lower than 'probable cause'".—[Official Report, 16/12/03; col. 1063.]
	The treaty is what today's debate is fundamentally about. The treaty needs to be ratified by both parties to give it binding effect in international law. Until it is ratified by both parties, the 1972 treaty in international law prevails. We are still waiting for the 2003 treaty to be ratified by the United States.
	Meanwhile, in November 2003, the Extradition Bill became law. I need to refer to two provisions of the Bill, though telegraphically. The relevant part of the Bill is Part 2; Part 1 deals with arrest warrants. Section 84 of Part 2 provides for extradition to territories other than those covered by the European arrest warrant. In particular, Section 84(1) states that, faced with an extradition request, a judge must decide whether there is sufficient evidence to make a case requiring an answer from the subject of the request. That is to say, Section 84(1) establishes and repeats the prima facie rule. However, under Section 84(7), the need for prima facie evidence is excluded if the Secretary of State makes a designation so saying.
	That further designation was made under the Extradition Act by an order which came before your Lordships' House in December 2003. Under that order, the United States was one of a number of paragraph 2 countries, most of which were signatories to the European Convention on Extradition. The act of designation by that order—its approval by both Houses of Parliament—meant that from 1 January 2004, we were required to meet our side of the bargain struck by Mr Blunkett in that treaty even though there was no obligation on the United States to meet its.
	That point was freely admitted by the noble Baroness, Lady Scotland, in the December debate, but she was optimistic. She said:
	"We anticipate that the treaty will be put before the Senate formally early in the new year"—
	the new year of 2004—
	"and approved shortly thereafter. We do not anticipate that we shall encounter any difficulties in that regard".—[Official Report, 16/12/03; col. 1071.]
	Yet, here we are, two and a half years later. The United States has done nothing about ratification, in breach of the rules of international comity. But we have been acting as though the United States had ratified that treaty, to the astonishment of a number of Americans, some of whom gave evidence to the relevant Senate committee in November last year. We have been acting on the basis of a treaty that, as yet, forms no part of international law. That explains the first of our amendments—Amendment No. 186—which would simply remove the United States from the designation of Part 2 territories until ratification takes place.
	We believe that the time has come for your Lordships' House to act. The United States Senate is, after all, another upper House in an English speaking world; and we hope that a firm signal from your Lordships' House would be taken seriously by the United States Senate.
	There are two other amendments in this group—Amendments Nos. 191 and 191A. We intend to withdraw Amendment No. 191 in favour of Amendment No. 191A tabled by the noble Lord, Lord Goodhart. We are able to support that amendment although we are not totally content with it as it stands. We do so to give the other place the chance to consider the underlying operation of the treaty, and we do so with one very significant reservation—that when it gets to the other place, it must be revised to remove its application to acts of terrorism so as to ensure that we can maintain quick and efficient extradition of terrorists, which is a principle that I know the whole of your Lordships' House supports.
	I move on to the question of reciprocity. I shall make no observations about the substance of the case known colloquially, in all the newspapers, as the case of the NatWest Three. However, it is fair to say that their case has thrown up a number of weaknesses in the treaty negotiated by Mr Blunkett as well as in the Extradition Act 2003. I shall pay some attention to both of them.
	First, there has been no attempt whatever by the Government to incorporate the forum rules contained in the 1957 European Convention on Terrorism to which we are parties, although the United States is not. Article 7.1 of the convention is reflected, in essence, in our Amendment No. 189, which says:
	"If the conduct disclosed by the request was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears in the light of all the circumstances that it would be in the interests of justice that the person should be tried in the category 1 territory... In deciding whether extradition is in the interests of justice, the judge shall take into account whether the competent United Kingdom authorities have decided to refrain from prosecuting the person whose surrender is sought for the conduct constituting the offence for which extradition is requested".
	That amendment in essence reflects terms to which we agreed in the 1957 treaty and the Council framework decision of 13 June 2004 on the European arrest warrant. It hands over to a judge the power to decide not whether there is a prima facie case but whether the nature of the offence, in all the circumstances, ought to be tried in the United Kingdom rather than the United States. In reaching that decision, the judge would take into account a number of factors—such as territoriality, the availability of witnesses, the nature of the evidence and the availability and admissibility of that evidence. This approach has been well established in Europe for many decades; and we see no reason why they should not apply to the extradition treaty and the Act applying to it between the United States and ourselves.
	One interesting thing about the extradition treaty between Ireland and the United States is that it contains precisely that qualification. Like us, the Irish are no longer demanding prima facie evidence, even though the United States continues to demand probable cause. But the Irish Government have insisted that the courts apply a forum test. That is totally absent from the Extradition Act 2003, and we believe that it should be included.
	The second matter to which I draw your Lordships' attention is the question of the relationship between the Extradition Act 2003 and the Human Rights Act 1998. Throughout the debates that we had on the Extradition Bill, the Minister was at pains to reassure us that the terms of the Human Rights Act would continue to apply to matters within the jurisdiction of the Extradition Act. That fact is in the Act in Clause 87(1), where it says that judges considering these matters are expressly required to take into account the Human Rights Act when construing the Extradition Act.
	There has recently been a series of cases in connection with the NatWest Three. They have gone as far as the Court of Appeal; it considered the relationship between the Extradition Act and the Human Rights Act and reached the conclusion that, in every case, the international treaty as reflected by the Extradition Act always trumped the Human Rights Act. On a true construction of the Act in relation to the Human Rights Act, I am sure that that judgment is sound; and nothing that I am about to say should in any way be read as a criticism of the Court of Appeal. However, if that is now the law, and the Human Rights Act is overridden in that total and complete way by the Extradition Act, then the Government should look at that relationship again.
	In the deportation of non-British nationals cases, the courts spend years trawling over factual issues about what will happen to a non-British national when he or she is returned to the country to which he or she is to be deported. But it appears that in the context of the extradition treaty, the balance between what the Human Rights Act requires and the Extradition Act itself is different from normal deportation cases. At least, that is what I have concluded from the judgment of the Court of Appeal. If that is so, in my submission the Government should look at this balance again. That is the second reason why we have raised further amendments and will support the amendment tabled by the noble Lord, Lord Goodhart.
	I do not need to say anything more, except this: I have watched, in the course of the past five years of the Government's time in office, an astonishing erosion of the rights of the criminally accused in a whole range of areas, which I am not going to repeat. The Minister has heard me saying this before; she knows what I am saying. I regard the manner in which a country treats its criminally accused as absolutely central to the way in which it is defined as an open, free and democratic society following the rule of law. That has been said by many great men; it is not an original observation. Quite frankly, the evidence that the Committee has before it today is that the circumstances surrounding the ratification of the treaty, and the degree of reciprocity within it, raises further serious question marks about whether we meet that free society test. I beg to move.

Lord Goodhart: We on these Benches have objected to the extradition arrangements with the USA ever since the text of the new treaty was published shortly after it had been signed on 31 March 2003. I have put my name to Amendment No. 186, which has just been spoken to by the noble Lord, Lord Kingsland, as well as to Amendment No. 191A, which stands in my name alone.
	The purpose of these amendments is to prevent serious injustice for people who now face extradition to the USA or may do so in the future. That injustice arises from the absence of any need for the American Government to provide any evidence of possible guilt in support of the request; the lack of reciprocity, since requests for extradition from the United States have to be supported by evidence; and the aggressive American pursuit of extradition in cases that ought to be tried, if at all, in the United Kingdom.
	I shall start by removing a smokescreen that has been put up by the Government. The smokescreen is the statement that there is no lack of reciprocity and that the tests for extradition in opposite directions are in fact equal. That is a view the Minister herself accepted in December 2003, when, in the course of the debate on the order, she made the statement that has been read to your Lordships by the noble Lord, Lord Kingsland. That is quite different from the Minister's answer to the question from the noble Lord, Lord Anderson, in your Lordships' House last Tuesday, when she said there was no such difference. That line was repeated by the Prime Minister in his reply to a question from my right honourable friend Sir Menzies Campbell last Wednesday, when he said:
	"If I may again deal with the reciprocal arrangements, it is not true that the United States has a different evidential burden from this country. The probable cause, which is the burden that the United States places on countries that want to extradite from the United States, is analogous to what we now provide under the Extradition Act 2003. It is not correct to say that the United States has been given preferential treatment or that the arrangements in respect of evidence are not reciprocal".—[Official Report, Commons, 5/6/05; col. 807.]
	That is simply and totally incorrect. To explain why that is so, we need to go into a little detail. The extradition treaty between the United Kingdom and the United States was signed in 1972 and came into force a few years later, and is still, at least nominally, in force. Under Article VII of that treaty a request for extradition in either direction must be accompanied,
	"by such evidence as, according to the law of the requested Party, would justify his committal for trial if the offence had been committed in the territory of the requested Party".
	Under that treaty, it was slightly easier to get extradition from the United States to the United Kingdom than the other way around. That was because in England—and, I understand, also in Scotland—committal for trial requires the prosecution to show a case to answer, or, to use the old Latin phrase, a prima facie case. That means the prosecution has to show evidence that, if not challenged or contradicted by evidence from the defendant, would be sufficient to justify conviction.
	In the United States, a slightly lower standard is needed for committal: the standard of "probable cause", which was written into the fourth amendment to the American constitution. What is required to meet the standard of probable cause is evidence that would provide a reasonable basis to believe that the person in question committed the offence for which their committal is sought.
	The American test is somewhat lower. The test to be satisfied is based on reasonable grounds for belief in guilt, rather than on evidence that, if not contradicted, is capable of proving guilt. I accept that that is a significant, but not enormous, difference. It is far smaller than the difference between having to show reasonable grounds for belief in guilt and having to provide no evidence of guilt at all. In spite of the Government's denial, that is a significant difference, and the Government are in fact misleading us.
	I move on to the new treaty, signed on 31 March 2003 and not yet approved by the Senate. If and when that treaty comes into force, the need for evidence is covered by Article 8.3, which says:
	"a request for extradition of a person who is sought for prosecution shall be supported by"—
	then there are two paragraphs that are irrelevant, so I shall go straight to paragraph (c)—
	"for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offence for which extradition is requested".
	That applies the test of probable cause for extradition from the United States. No requirement for any corresponding information before extradition from the UK is provided for.
	I have two comments on that. First, paragraph (c), which I have quoted, makes it plain, if any proof were necessary, that different standards apply to extradition from the United States and extradition to it. Secondly, reciprocity could be established by simply deleting the words "for requests to the United States" from that paragraph so it was made the same both ways.
	I move on to the Extradition Act 2003 and the order made under it in December 2003, the order mentioned in Amendment No. 186. The Extradition Act, as the noble Lord, Lord Kingsland, explained, divides states into two categories: category 1, which consists of the European Union states and a few others where no evidence of guilt is required for extradition on, at least in the EU, a fully reciprocal basis; and category 2, the territories including the USA and many other states.
	The noble Lord, Lord Kingsland, has explained that under the Act category 2 states are required to produce evidence that would be sufficient to make a case to answer—that is, the traditional British test—unless, under Section 84(7), the Home Secretary has designated category territories from which such evidence is not required. As we know, such an order was made in December 2003. That included the United States and many other countries, most of them parties to the Council of Europe Convention on Extradition, to which the United Kingdom subscribed in 1991 and under which evidence on reciprocal terms is not required. I should say that the Liberal Democrats was the only party which objected to the inclusion of the United States in the list designated under Section 84(7). That was debated in your Lordships' House on 16 December 2003, when we voted against the order and the Conservatives abstained.
	Since that order came into force on 1 January 2004 no supporting evidence of guilt is needed for extradition to the USA, even though the 1972 treaty is still in force. In taking up this position, the Government have made two fundamental errors. First, they should never have agreed to the unequal treaty with the USA. I accept that there could have been no valid objection to lowering the standard for extradition to the USA to the American standard of probable cause. As pointed out already, this could have been achieved by the removal of six words from Article 8.3. There is no justification for the total removal of the need to show some evidence of guilt. Indeed, as again the noble Lord, Lord Kingsland, said, what has happened here shows absolutely the need for parliamentary scrutiny of draft treaties and parliamentary approval as part of the ratification process of treaties entered into by the Government of this country.
	The second fundamental error was to designate the USA under Section 84(7) before the 2003 treaty had been ratified by the USA. That was a tactical error because it removed any incentive for the Senate to approve the treaty, which contains some provisions which are to the advantage of the United Kingdom. The treaty has, however, met with opposition in the USA, particularly from Irish-American groups, and those carry considerable weight with a good many senators. So there is no incentive, and I have no expectation that the Senate will approve this treaty in the remotely near future.
	More importantly, the designation exposed residents of the United Kingdom to extradition under unequal arrangements at a time when there was no obligation under the treaty or otherwise to do so. The number of people against whom extradition to the USA is currently sought is fairly considerable: it is about 15 or 20. Except for the NatWest Three, these cases are still sub judice and cannot be referred to, but they include a number of senior businessmen and some people against whom extradition is sought on grounds relating to terrorism. Those people are entitled to the same protection from unjust extradition laws as are senior businessmen. That was shown quite clearly by the case of Lotfi Raissi, an Algerian pilot against whom extradition was sought under the 1977 treaty on terrorist grounds, but the supporting evidence totally failed to substantiate the case against him and he was released.
	The Government must take action. First, they should recognise the force of opinion in both your Lordships' House and among the public and revoke the 2003 order immediately so far as it applies to the USA. I recognise that there is a time problem here. This Bill will not go back to the House of Commons until late October, so even if the House of Commons were to accept Amendment No. 186, it could not be effective for several months. By that time the NatWest Three and perhaps others will have been extradited to the USA, so immediate action is needed here.
	It would be wrong to extradite people when your Lordships' House has agreed to—as I hope it will—amendments which would prevent their extradition and the House of Commons has not had a chance to consider those amendments. If this amendment is agreed to, the Government should at the very least put extradition on hold until the House of Commons has had time to consider it.
	Next, the Government should renegotiate the 2003 treaty to remove the six offending words and make the extradition test reciprocal. Amendment No. 186, which would remove the designation of the United States under the 2003 order, is the key amendment. Amendment No. 191A, which stands in my name, is consequential on that because it would prevent any re-designation of the United States under Section 84(7) until a reciprocal treaty had been entered into. I recognise that at present the Extradition Act does not recognise any possibility of a halfway house between having to show a full case to answer and having to produce no evidence at all, so further amendmentsto the Extradition Act may be necessary. But that can be dealt with in due course if the principle is accepted.
	I do not accept that the amendment should, asthe noble Lord, Lord Kingsland, suggested, exclude alleged terrorists. The ordeal faced by anyone extradited to the USA on the basis of unfounded allegations of terrorism would in all probability be far worse than the ordeal of people extradited on the basis of unfounded allegations of financial crime. The case of Lotfi Raissi shows that that is a real possibility. As I have already indicated, I would accept a general reduction in the standard of evidence required for extradition to the USA from a prima facie case to one of probable cause.
	I agree with everything that the noble Lord, Lord Kingsland, said on the question of forum and have nothing further to say.
	This group of amendments is an opportunity to correct a grave injustice which has caught the nation's attention. I ask the Government today to undertake the immediate revocation of the 2003 order and to enter into renegotiation of the 2003 treaty. If they fail to give those undertakings, I hope that the Committee will give an overwhelming endorsement of these amendments.

Lord Lester of Herne Hill: If all is as the Minister described, can she explain why Irish Americans are opposing ratification?

Baroness Scotland of Asthal: I do not agree. Prior to reading the decision of Lord Justice Laws andMr Justice Ouseley, I would have said that, on the basis of belief and assumption. However, having read the judgment, I can see very clearly that the evidence and information provided was of a very substantial nature. So information has to be provided, and I argue that it is clear that that information is of a fairly high or good quality.
	We do not accept that there is such a lack of reciprocity as to justify removing the United States from the group in which it currently sits with many other countries. If we remove the US for white-collar crime—or fraud, to give it its proper title—and for everything save terror, we will disable ourselves and the United States in dealing expeditiously with a number of other pernicious offences: sexual offences, such as rape; capital offences in the US, such as murder; and many others, too. I do not believe that that will inure to our country's benefit or indeed to that of the United States.
	I have dealt in part with the third myth, which is that there is no reciprocal arrangement or direct reciprocity. As I tried to explain, and I hope the Committee will accept, although there is not exact reciprocity, which is almost impossible between any two legal systems, when we have looked at the matter—and we have been asked to do so many times; it was first raised, as the noble Lord, Lord Goodhart, rightly said, in 2003—we have been content with the view that we arrived at a while ago: namely, that we have appropriate parity.
	We have discussed this matter with the United States and are entirely satisfied that the way that they interpret the phrase that I have just used—
	"such information as would provide a reasonable basis to believe that the person sought committed the offence for which extradition is requested"—
	is broadly equivalent to the way in which they use the phrase "probable cause". There is no dissonance between us and them. That is broadly the information required to justify the issue of an arrest warrant in both countries. That is why I say that there is parity and there is not an issue regarding lack of reciprocity. Perhaps I can underline the point on reciprocity. When US prosecutors make a request to us—and this is the point we have had clarified for us—they have to justify just the same test, because they have to include their domestic arrest warrant in their request to us. As I said, that means that they have to satisfy their own magistrate on probable cause. We believe that that helps to demonstrate reciprocity.

Baroness Scotland of Asthal: The reason is that there has been an unfortunate conflation between the failure to ratify the treaty and the terms that exist between us and them as a result of the 2003 Act. In the public mind, as has been evidenced in this Committee today, there is an erroneous belief that we have to remove our citizens to America without any evidence at all—that is the import of what is suggested—while they are not obliged to do the same for us. As there is antipathy for the failure to ratify, there is a lack of confidence—a reduction in confidence—that we and many of our citizens enjoy with the United States. It is damaging to our relationship for this confusion to continue. For that reason, we believe that it may helpful for me to make those points clear, on a face-to-face basis, in America.
	The fourth myth is that the basis on which cases such as the Enron Three have been decided is fundamentally flawed and that these three people are to be extradited because of a failure to ratify the treaty. That is simply not correct. The treaty is not yet in force but, as I hope the Committee will nowbe aware, the arrangements under the Extradition Act 2003 which set the current procedures for extradition requests to the United Kingdom fromall extradition partners would have operated to allow the extradition of the three people accused of involvement in the Enron fraud. So although in making the arrangements we implemented the part of the treaty that allows that to happen, the information requirement remains.
	The fifth myth is that the United Kingdom has insufficient safeguards for its citizens within the arrangements. That too is simply not true. I have set out the safeguards on many occasions but it may be appropriate if I quickly summarise them: identity, dual criminality, a request made for improper reasons, double jeopardy; injustice due to illness, ill health or passage of time, and the human rights provision. The human rights safeguard is important. I hear what the noble Lord, Lord Lester, says about the import of the case of the Enron Three, but that is not the full conclusion that one reaches when reading the decision. In this decision the court referred specifically to Article 8 of the convention and the comments were made in relation to that and not to the whole of the ECHR. At the end of the judgment, Lord Justice Laws said in terms that, in any event, for the reasons that I gave in dealing with the appeal against the judge, the defendants had and have no ECHR case. The court reached a general view that the defendants in the Enron Three case had no ECHR case. I know that the noble Lord, Lord Lester, will agree that Lord Justice Laws and Mr Justice Ouseley are nothing if not expert in the Human Rights Act and the ECHR. And that was their finding. I still believe that the Human Rights Act provides a very important safeguard regarding this treaty. The last two safeguards concern the death penalty and speciality.
	The sixth and final myth—although there seem to have been so many myths that it is difficult to know when to stop—is that people may be extradited without a nexus being established with the jurisdiction requesting their extradition. That has arisen in the Enron Three case. In fact, the courts must find that a request is extraditable. In the Enron Three case, the courts found that the alleged conduct had taken place in the United States, and of course the money which the men are alleged to have made was in Enron dollars and Enron shares. Even if the extradition is sought by any other country for offences that are extra-territorial, then we must recognise those offences also as extra-territorial under the extradition principle of dual criminality enshrined in the Act. In the judgment in that case, the court specifically dealt with those matters. One myth which seems to have been promulgated is that this was a British case. The judges dealt with that very specifically in upholding the decision in the Enron Three. In paragraph 47 they said:
	"The losers were Enron and National Westminster Bank...
	"This is a case where the evidence is to be found in the United Kingdom, Cayman Islands and the United States of America. In particular the other participants in the alleged conspiracy—Kopper and Fastow—are to be dealt with in, and are available to give evidence in, the United States. In these circumstances I think it more likely to be in the interests of justice for your clients to be tried in the United States".
	The issue of forum was dealt with comprehensively and looked at, and it was a proper matter to be dealt with by the courts here. It is therefore simply not right that cases with no nexus with our country can be dealt with in this way.
	When the Act was in preparation, thought had to be given to the basis on which we differentiate between our extradition partners. We already had a large group of more than 40 countries from which we did not require prima facie evidence, consisting of most of the countries of continental Europe under arrangements set up by the Conservative Government in 1991, when they acceded to the Council of Europe's European Convention on Extradition. Israel and South Africa, as associate members of the Council of Europe, also participate in the ECE. We have had an international obligation ever since to every country that has joined the ECE. That includes countries such as Albania and Azerbaijan, to take just the beginning of the alphabet. I remind noble Lords who may be concerned about how such requests are dealt with that the Human Rights Act applies.
	The question then arose of how to deal with non-Council of Europe countries with whom we have close relations. Those include not just the United States but also Australia, Canada and New Zealand. It is worth noting that those countries allow us to make requests not just on comparable terms but, in the case of New Zealand, on terms quite similar to those of the European arrest warrant; and for Canada simply on the basis of a statement of the case, which is probably rather less than probable cause. In sum, then, the removal of the prima facie requirement, although not appropriate for every country, is consistent with the faster and more flexible approach to extradition that is needed in the modern world. There is no benefit to anyone in our judges having to hold mini-trials on the facts in an extradition case when we can trust the requesting state to hold a fair trial of the evidence.
	That leads me to what I respectfully but regretfully say to the noble Lord, Lord Rees-Mogg, was a caricature of the American system. The American system believes in fair trials, legal representation, the ability of individuals to appeal and just delivery. To caricature the United States as a country that operates differently from that is most regrettable.

Baroness Scotland of Asthal: It is the reality of where we are. The United States has a system that is part federal and part state. Within that system there is an allowance for difference. We cannot recast the United States into a way that we would prefer.
	I turn to some of the very specific issues raised by noble Lords. The noble and learned Lord, Lord Mayhew, suggested that we would be strengthenedif this Committee resoundingly supported this amendment. However, that is not the likely consequence or reaction that the United States may have to such an act. We have to look very carefully indeed at the basis on which we could logically justify removing the United States from Part 2 and the order in which it currently fits while allowing other states—which may also not have a treaty that inures to their benefit—to have the benefits and stay in the same place. That is a real difficulty.
	The noble and learned Lord also asked me to deal with the issue of forum. We basically find ourselves in the following position: having extended inclusionto the United States, we would be removing it notwithstanding the fact that, as Ambassador Tuttle made clear in the article he put in the Financial Times, it has honoured requests from us. It has surrendered people from its jurisdiction to ours and believes that, in so doing, it has behaved honourably and well and in comity to us. So in practice the question would be: on what basis do we say that the US has behaved so improperly that it should be deprived of a benefit granted to it, a benefit from which we too have already benefited? I have heard nothing this evening that would give me comfort about what I could say to them to explain that.
	I am aware of the frequently expressed concernof the noble Lord, Lord Goodhart, about the designation of the United States; indeed we have debated the point on more than one occasion. The amendment would require the United States once more to provide prima facie evidence with its extradition request, as it did before the Extradition Act 2003. I was grateful to the noble Lord for his acceptance that the prima facie evidence standard is greater than the United States has ever asked from us. As a result, on Amendment No. 191, we think thatan insistence on precise reciprocity of evidential requirement between our two jurisdictions before the United States could be re-designated would be flawed. The amendment is unnecessary because the arrangements currently in place achieve, as I have tried to indicate, a reasonable balance.
	The forum argument can be well dealt with by virtue of what happened in the Enron Three case. The forum issue could quite properly be discussed. The court considered all the issues on those matters that the noble Lord, Lord Kingsland, has set out. We believe that the current system allows those issues to be dealt with in an efficacious way.

Baroness Scotland of Asthal: What I am saying quite clearly is that, first, I understand the strength of feeling that has been expressed in this House as a result of the failure to ratify the treaty. The expression has been about fairness—that it is unfair that the Americans should have any portion of the advantage that was inherent in the 2003 treaty without having ratified. I understand the nature of that assertion.
	I also understand that there is an argument as to whether there is perfect parity between evidence necessary to justify the issue of a warrant and probable cause. I have tried to explain to the House why I believe that the anxiety about those two matters is flawed—first, because the Americans have accepted that the two tests are very similar; secondly, and much more importantly, they have to satisfy the probable cause test before they ask for extradition from us. The information that they have been sending us seems to comply with that test.
	So our position is that we do not see why America should be treated significantly differently from the other countries which currently have the advantage of that part of the Act. I have heard nothing in this debate to give any justification for that differentiation.

Lord Christopher: Would my noble friend be kind enough to confirm that I have heard and interrupted her correctly: that this is about serious alleged offences having taken place in the United States and that the evidence, or the principal evidence, for those alleged offences is in the United States and would probably not be available here?

Lord Kingsland: It is plain from the recent Court of Appeal decision that it has the full benefits of the treaty. It is equally plain that we have none of them. That is why we tabled Amendment No. 186.
	I said at the outset that I would deal with all the other amendments in opening; I have done so. I shall now deal with the other amendments in closing. Central to the response of the noble Baroness has been her contention that the tests in the treaty signed by Mr Blunkett and Mr Ashcroft are essentially of equal weight. That is not something that she said in response to the debate on the 2003 provision; but she is saying it now.
	I draw the attention of the noble Baroness to Article 8 of the 2003 extradition treaty. That deals with extradition procedures and required documents. Paragraph 3 states:
	"In addition to the requirements in paragraph 2 of this Article, a request for extradition of a person who is sought for prosecution shall be supported by:
	(a) a copy of the warrant or order of arrest issued by a judge or other competent authority;
	(b) a copy of the charging document, if any; and
	(c) for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is requested".
	There is no equivalent provision in the article for the United Kingdom. I simply do not believe it credible that the assertions of the noble Baroness about probable cause, made in response to the noble Lord, Lord Goodhart, can possibly be right.
	The noble Baroness dealt very briefly with the issue of forums. We have signed a treaty not just with our European partners, but with all those European states which have signed up to the European convention, enshrining the forum concept contained in our Amendment No. 189. That provides that the judge ought to decide, in all the circumstances of the case, if an offence was capable of being prosecuted in this country, whether it should be prosecuted here or go abroad—whether to the United States or otherwise. That is a very simple amendment that the noble Baroness could make to the Extradition Act 2003. She has given no indication that she intends to do so. That would be an easy way out for her. If we had that forum test, it would prevent further pressure being placed on her to renegotiate the treaty itself.
	As for the human rights protections, I was very surprised to hear the noble Baroness saying that she thought that the human rights issues had been dealt with satisfactorily by the Court of Appeal. Of course it had in the context of the existing law; but, in terms of an appropriate balance between the extradition treaty and the human rights convention, the decision of the Court of Appeal revealed that amendments are necessary to rebalance the rights of individuals when they face extradition proceedings.
	A number of noble Lords suggested that the Minister had conducted her response extremely charmingly but equally extremely unpersuasively. If I had received a set of instructions, such as those given to the Minister, from a solicitor, I would certainly have returned them immediately. I wish to test the opinion of the Committee.

Lord Kingsland: I spoke to these amendments at an earlier point and there is only one additional matter to which I wish to draw the attention of noble Lords. I am prompted to do so by the comments of the noble Baroness about the appropriateness of the judiciary making judgments about forums.
	The United Kingdom has been a party to two European conventions; one is the Council Framework Decision of 13 June 2000 on the European arrest warrant and surrender procedures and the other is the European Convention on Extradition. Paragraph 7 of Article 4 of the Council Framework Decision states:
	"The executing judicial authority shall refuse to execute the European arrest warrant,
	7. where the European arrest warrant relates to offences which:
	"(a) are regarded by the law of the executing member state as having been committed in whole or in part in the territory of the executing member state or in a place treated as such".
	So during the term of office of this Government they have agreed, on behalf of the United Kingdom, to that clause in that decision. It is quite plain that we think a judge is entitled to take that decision. Similar provisions are set out in Article 7 of the European Convention on Extradition.

Lord Razzall: My Lords, I join other noble Lords in thanking the noble Lord, Lord Lofthouse, for introducing this important debate. Despite the fact that our crowd has departed, this is exactly the sort of issue that this House ought to be debating, and which finds this House at its best. Even a cursory study of the newspapers in recent months would give anyone who looks at this issue the view that something funny has been going on, and that indeed there seems to be the beginning, if not the middle and end, of a scandal in the enormous compensation that various firms of solicitors have been making at the expense of miners and their families, as the noble Lord, Lord Lofthouse, has indicated.
	I have a number of questions for the Minister. What concerns me is that there seems to be a complete mismatch between the assumptions that we are all making—I have not yet heard what the noble Baroness, Lady Miller of Hendon, will say, but I doubt that she will disagree with anything that has been said tonight—and the position that the Law Society has taken. Those of us who have received the Law Society's brief know that its position is that it has,
	"acted promptly to deal with complaints about...deductions; informed solicitors dealing with these cases of the correct approach, and is pursuing robust regulatory action against any solicitors who may have been guilty of misconduct".
	Having heard the remarks of noble Lords opposite, and having read the newspapers and looked into this myself, I have some difficulty accepting that the Law Society's interpretation of the facts is correct, but the matter could be pursued if the Minister could indicate which of the following contentions from the Law Society he agrees with.
	On the background, I understand that two particular problems have arisen. First, a number of solicitors entered into agreements with clients by which the firm of solicitors was due a success fee if the claim succeeded. As the noble Baroness mentioned, in many cases the idea of a success fee was ludicrous as a lot of the work was simply form-filling and administration. The idea that there should be a success fee—which you might have on a no-win, no-fee basis if there was litigation—was ridiculous. As there was not any risk of lack of success, it was an additional charge.
	The Law Society's case is that after MPs expressed concern about success fees, the society informed its members that the additional charges could be justified only if the charge was reasonable. They also set out a number of other conditions. The Law Society contends that £3.6 million in success fees has been returned to individual claimants or their families following its intervention. I do not know whether that deals satisfactorily with the "success fee" issue, but I would be interested to know whether the Government believe that the Law Society has dealt with it.
	A number of noble Lords have touched on the second issue, which is third party deductions. There has been an issue here for the trade union movement. Some unions have made third party deductions, but there have also been other organisations that are not trade unions and yet may have masqueraded as such. We can name names: Miners' Welfare, Union and General, the Miners Community Advice Centre, the Legal Rights Board, the Legal Advice Bureau and, notoriously, UDM/Vendside—which the UDM is blamed for, but I do not think is anything to do with it. The firm is a claims farmer that claims it is owned by the UDM, but I suspect it is not. The noble Lord, Lord Sawyer, is nodding, presumably on the basis that I am correct.

Baroness Henig: I am very grateful for what my noble friend has said and the conciliatory spirit in which the points have been made. In view of the lateness of the house, I beg leave to withdraw the amendment.

Baroness Scotland of Asthal: This amendment will ensure that persons accredited by the police under provisions included in Clause 13 are not eligible to serve as chairman or members of the Independent Police Complaints Commission. This will bring them into line with other categories of accredited person. I beg to move.

Baroness Scotland of Asthal: I thought we were on Amendment No. 194A. I beg your Lordships' pardon. Amendment No. 193A was in a group that was debated and agreed previously by the Committee, and I was going to move it formally. I went straighton to the next substantive amendment, Amendment No. 194A.

Lord Dholakia: I intended to ask another question on Amendment No. 193A. I hope the Minister will not mind. This is about Section 2 of the Computer Misuse Act. I find it very difficult to understand why a person guilty of an offence in England and Wales under subsection (5) is liable to imprisonment for a term not exceeding 12 months, but, on summary conviction in Scotland for the same offence, is liable to a term not exceeding six months. I wanted to know precisely why there was this difference.
	The second point I wanted to talk about, following the argument used by the noble Earl, Lord Northesk, was on Amendments Nos. 193A and 193B. We were talking about computer hacking. The government amendment talks about Section 5 of the Computer Misuse Act, which says,
	"that any computer containing any program or data to which the accused secured or intended to secure unauthorised access by doing that act was in the home country concerned at that time".
	That is as far as England and Wales are concerned. I suspect it also applies to the sheriffdom in Scotland. There are cases of computer hacking going on at international level. Is the Act simply restricted to what happens when a person is in this country, or does it apply internationally as well?